The internet has been revolutionary, allowing us to connect with others – locally and across the globe – in real time in a way that’s never before existed in human history. But it’s not been without its complications, at least where application of the law has been concerned – and that includes criminal law.
Although many online interactions and exchanges – however heated – can be safely considered “free speech,” its bounds aren’t limitless. In fact, communications over the internet may in some cases be at higher risk of crossing the criminal threshold because they lack the benefit of context, inflection or familiarity of face-to-face or even phone conversations.
Florida criminal defense attorneys know law enforcement agencies are increasingly keen to solicit and investigate tips of threats made online, particularly in the wake of several mass shootings. Some agencies have said that dozens of potential shootings were stopped by this heightened vigilance in the wake of shootings in Dayton and El Paso.
Still, many of those charged find themselves bewildered that words, images or videos posted to a Facebook page or Instagram account might potentially have them facing jail time.
When Free Speech is Protected
Free speech has been a core civil right in the U.S. since its founding, its protections outlined in the very First Amendment to the U.S. Constitution.
In 1997, the U.S. Supreme Court in Reno v. ACLU ruled that speech on the internet is equally worthy of such protection. That includes speech or comments that might be considered distasteful or disagreeable.
But that doesn’t mean one can simply say anything they wish. Just as it is with print, broadcast, phone conversations and text messages, the right to free speech has its limits. In our experience as Fort Lauderdale criminal defense attorneys, the type of speech that most often causes folks to seek our advice is threats.
Written that a reasonable person could take seriously are barred under Florida Statute 836.10. A threat to cause bodily injury or kill someone – or to the recipient’s family member – is not something prosecutors take lately. The law encompasses electronic communications – anonymous or otherwise.
A written threat is considered a second-degree felony, punishable by up to 15 years in prison.
Some of the people arrested in the wake of the recent mass shootings were arrested after making specific threats against individuals or organizations. The instantaneous nature of electronic communication is such that these words can be difficult to take back/erase once posted or sent. Even if there is no certainty about whether the sender would have followed through with such a threat, they can still potentially be prosecuted.
Making a False Report Online
There have been a host of so-called “copycat threats” online, many of which are made by teenagers – a fair number of whom argue as a defense that they never intended to carry out the threat.
Although most online threats need to be reasonably believable to be prosecuted, those who make a false report with intent to deceive, mislead or misinform someone else about the violent use firearms, bombs, dynamite or any other deadly explosive or other weapon of mass destruction can also be charged with a second-degree felony.
Online Revenge Porn
Sometimes referred to as sexual cyber-harassment, it’s considered a crime to post sexually explicit images or videos of someone on the internet without their consent. (If the subject of the images is a minor – regardless of whether the defendant is too – we could be looking at child pornography charges as well.)
Even if the original image/video was taken with the person’s consent, posting that image online absent explicit consent for it is considered a crime under F.S. 784.049.
Other Online Activities In Which to Use Care
Other online activities in which you should use extreme caution:
- Sharing private information without consent;
- Hate speech (which technically is protected under the 1st Amendment, but can cross the threshold into criminal territory if it is interpreted as a threat);
- Pictures or talk of drug use or trafficking. This isn’t necessarily criminal in and of itself, but keep in mind that many law enforcement agencies have gotten adept at searching social media and other platforms when gathering evidence of potential crimes;
- Spreading rumors. In general, this probably won’t be considered a crime – unless it crosses the territory into stalking or threats. It could also make you vulnerable to a defamation lawsuit.
Keep in mind that even if you aren’t arrested, you could be risking your reputation, your job, your housing or your education opportunities.
If you are arrested, our Fort Lauderdale criminal defense attorneys can help.
Call Fort Lauderdale Criminal Defense Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.
Investigators struggle with growing number of online crimes, Oct. 10, 2019, ABC-27 News